August 30, 2011

DOJ Wants Full D.C. Circuit To Hear Retaliation Claim

A businessman who has fought in Washington for two decades to hold the government responsible for its botched fraud prosecution of him will have to wait a little longer for trial.

The U.S. Justice Department this week asked a federal appeals court (PDF) to rehear the dispute in the hope the full court will overturn a panel decision in July that went against the government.

The U.S. Court of Appeals for the D.C. Circuit ruled the businessman, William Moore Jr. of Texas, should be allowed to have a trial on the merits of his complaint. Moore’s case has been up and down from the trial court to the appeals court since he filed suit in 1991. Part of the case reached the U.S. Supreme Court.

Along the way, the heart of Moore’s case—that the government brought criminal charges against him in retaliation for speaking out about U.S. Postal Service policy—has survived appellate rulings. Indicted in 1988, Moore was acquitted in Washington federal district court during a bench trial.

In July, one judge on the appeals court expressed frustration that Moore’s dispute has dragged on.

“It has taken twenty-five years, a criminal trial, eleven appellate judges as well as all participating members of the United States Supreme Court—not one of whom has rejected his claim as a matter of law—to get to the point that a jury will finally hear and decide if government officials engaged in pay-back because the plaintiff sought to do business with the government,” Circuit Judge Karen LeCraft Henderson said in the court’s opinion. “To say that this has not been the government’s finest hour is a colossal, and lamentable, understatement.”

Moore is suing a group of postal inspectors who participated in the fraud investigation. The assistant U.S. attorney in Washington who handled the case is no longer a defendant.

DOJ lawyers contend the inspectors are immune from suit because they believed there was probable cause to connect Moore and his former company, Recognition Equipment Inc., to a bribery conspiracy that involved a member of the U.S. Postal Service board of governors.

The D.C. Circuit panel decision, DOJ said Monday, “eviscerates” the qualified immunity defense. The department wants the full court to overturn the unanimous three-judge panel decision.

The appeals court, according to DOJ, has deprived the government of the use of the defense. The panel decision allows a plaintiff like Moore to overcome the hurdle of immunity “solely by offering some evidence of a subjective, retaliatory motive.”

“The continued viability of qualified defense in such actions, therefore, presents a question of exceptional importance that warrants rehearing en banc,” a DOJ Civil Division lawyer, Catherine Hancock, said in the department’s request that the full court hear the dispute.

A lawyer for Moore, Jones Day partner Paul “Mickey” Pohl, who leads the firm’s product liability and tort litigation practice, said he was surprised DOJ asked for en banc review.

"To ask for an en banc rehearing when the government didn't get one vote on the panel below struck me as a little unusual," Pohl said. The panel decision, he said, represented a wide range of political and legal views. "The government clearly does not want to deal with the merits. They don't want a trial."

Moore’s legal team will have a chance to respond to the Justice Department petition in the D.C. Circuit if they are asked by the court. Jones Day represents Moore on a contingency fee basis. More background on the case is here.

No trial date is set in the U.S. District Court for the District of Columbia.